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zoobab writes "The Staff Union of the European Patent Organisation sent a letter to the President of the European Parliament, warning that after the EU accedes to the European Patent Convention, there is a risk that the European Parliament would be 'circumvented' as a legislator. The European Patent Organisation is in no way a model of democracy: national patent offices are in power, there is no parliament involved in the decision-making process, and diplomatic conferences are held behind closed doors. There are plans to create a central patent court in Europe, which would operate in a democratic vacuum, not counterbalanced by any legislative assembly, in particular not the European Parliament. Such a central patent court could also validate software patents via caselaw (as the German Supreme Court recently did with the Microsoft FAT patent). And Microsoft, IBM, and SAP are lobbying in Brussels not to reopen consideration of the software patent directive."

The United Patent Litigation System replaces the EPLA. The official justifications are that it will decrease bureaucracy and costs. As a side effect (which is the real motivation of some pushers), it will push aside the European Parliament (which threw out swpats in 2005), and give more power to the European Patent Office (which approves almost as much as the USPTO does). More details:

While I appreaciate the links and information. I even more appreaciate the fact that someone finally said what as needed (and was heard).

As a patentholder (no, hardware, not software), I can vouch for the fact that a centralized european patent office is sorely needed. Currently, getting a patent in all of europe depends on first finding a patent office that WILL grant you the patent (which can be hard because most of 'em sit on their arse saying; "Ee dont under stand this technology, it's new to us". Yeah morons, ofcourse it's new, otherwise I wouldn't be patenting it, now would I ?), and then running around to every OTHER patent office in europe and saying "But THEY already gave me the patent rights".

And this is not only difficult, but also expensive and an entry barrier for new technology movers and inventors.

There's no question that the current setup, in which the European Patent Office only performs a unified examination of a patent application but doesn't really grant a single European patent, is suboptimal from the perspective of those taking out patents. It's also an inefficiency that patent litigation can currently only take place on a country-by-country basis (including invalidation, unless oppositions happens early enough so that the EPO itself could reject the patent application).

However, if an international construct such as the European patent system is made more efficient and powerful, then that increase in power and efficiency should be accompanied by an at least proportional increase in power of democratically elected lawmakers governing the same field of policy-making. That should be a governing principle regardless of whether hardware, software or other patents are at stake. The patent examiners' union raises that point and basically says that the exact opposite is happening from their point of view: more power and less control.

And this is not only difficult, but also expensive and an entry barrier for new technology movers and inventors.

While that is true, please consider the following scenario:

1. Create office with power, without responsibility, and without anyone in the bureaucratic machine who can question their decisions2. Install own people (did I mention it's not an elected body?)3. WELCOME BACK SOFTWARE PATENTS

At least the national patent offices have clearly defined authorities they report to. Do we really need more red tape to sync databases?

All I can say is... good. I see no value in short-lived monopolies. I believe ideas (or tiny extensions of existing ideas in most patent cases) can occur (near) simultaneously -- in which case the patent is nothing short of paying for your own private monopoly, which can be enforced even if someone has a similar idea independently (this last bit is my main beef with patents in general).

I'm convinced that a harder-to-use patent system is actually the reason that there's such a huge amount of florishing sma

Patents will always be a double edged sword. A guy with a great idea can easily have it stolen by a large company in the same field with the ability to create and market the product much faster. Knock off companies become king. Think of an entire world full of unscrupulous chinese manufacturers forever cloning other people's products.

OTOH big companies with deep pockets can play the patent troll game far easier than in individual entrepreneur/inventor.

Ideally a patent provides a limited time period for inventors to profit from their idea, encouraging innovation while including a mechanism whereby these innovations can eventually pass into the public domain for the benefit of the general public.

The entire purpose of the EU was to reduce the crippling bureaucratic balkanization and get all the countries working from the same playbook. How can you expect a small country with, for example, no electronics manufacturing to have patent office expertise for that industry?

The big problem with the current issue isn't patents but the lack of checks and balances. The core idea of democracy is that every part of government has "civilian oversight".

And this is not only difficult, but also expensive and an entry barrier for new technology movers and inventors.

Anything that makes it more difficult to get a patent has my unequivocal support. Patents are not worth the trouble they cause in any field. Encouraging innovation is not worth the price paid in the form of the litigation and legal costs which are seising up not only our economies, but also out societies and culture.

What on earth are you talking about? You clearly have no real experience of filing a European patent application at all. There IS a centralized European patent office.
http://www.epo.org/ [epo.org]
When you file a European patent application, you apply through the EPO. You certainly don't need to go 'finding a patent office that WILL grant you the patent'. No national office has the power to grant you a European patent anyway.
Mod parent down.

To further clarify - there is actually no such thing as an "European Patent". However, you can apply for a patent at the EPO, which will be the only office researching and examining your application. If and when the EPO grants the "European Patent", national patents for every EPC member state you named in your application come into existence, without the national patent offices having a say in the matter. The so-called European patent actually exists as a bundle of national patents in all named member state

it will push aside the European Parliament (which threw out swpats in 2005)

You keep repeating this in multiple threads, but it's still not true. The EU threw out patents on software per se. That's exactly the same holding as Bilski - software per se is unpatentable, but if it is tied to a computer, it is patentable both as a method and as a system. There are software patents being issued every week in the EU.

What makes you say that? The background was that the legislation excludes "swpats as such", and the EPO interprets so narrowly to be almost non-existant. The story with the EU is that the Commission proposed to clearly allow software patents, and it was discussed at great volume levels for a few years, and the Parliament threw out the Commission's proposal almost unanimously.

This means there was no change in the legislation, so were back to the

The current situation is that the EPO tends to separate the claims of your application into technical and non-technical properties. The non-technical properties are viewed as "pre-inventive", as something like a design goal, and therefore can not contribute to the novelty or non-obviousness of the subject-matter. The examination is then done only regarding the technical properties. For example, if you apply for an algorithm with steps A-D, performed on a computer (steps A-D being some numeric calculation fo

I followed it fairly closely at the time. The EU Council created legislation that would have solidly established Software Patents. The EU Parliament then passed several reasonably solid amendments against Software Patents. And then the legislation was killed. Some would speculate that it was killed because certain interests decided that the existing muddy EU patent situation was preferable to permitting the EU Parliament to legislate against Software Patents.

Some would speculate that it was killed because certain interests decided that the existing muddy EU patent situation was preferable to permitting the EU Parliament to legislate against Software Patents.

All of that is right "per se";-) but let me clarify that the European Parliament's amendments wouldn't have resulted directly in a new law. The Parliament's amended bill would have gone back to the EU Council. In that one, the proponents of software patents had approximately 70% of the votes, a

Its really simple, nobody wants to deal with the matter for the honesty of the matter.Neither Proprietary patent supporting parties nor open source patent free parties.

Why is also simple. The honesty of the matter of software would result in not only no software patents but also in genuinely free software, free in the since of making it possible for anyone to create software.

Current software development methodologies are like the roman numeral system in mathematics, where it takes specialization and trade s

I think it is fundamentally wrong to separate software from (other) ideas. After all, software is nothing more than a written down idea.

But I think that no idea should be “patentable”. I even think that such a process should not exist at all, since in reality it is 1. not enforceable anyway, and 2. only stifles innovation. Since every idea builds upon other ideas.But I still think inventors should be getting something for their ideas.

I listened to a European Commission official (the one who's considered the driving force behind the "patent reform" effort in question) as well as to Benjamin Henrion, the president of the FFII and submitter of this slashdot story, at a conference in Vienna, Austria, a week ago. On my FOSS Patents blog, I have published a report juxtaposing what the EU official said with the FFII's criticism [blogspot.com].

It's probably easy to figure out where I personally stand, given that I founded and ran the European NoSoftwarePatents campaign and that I also opposed the original proposal named EPLA (European Patent Litigation Agreement). Nevertheless I tried my best to give both sides of the argument fair and accurate representation of their statements and views on my blog.

There are indeed reasons to be concerned about a drift toward software patents in Europe, not only at the legislative level but also in terms of judicial decisions. In the past, the highest German court in such matters applied tough tests such as the controllable-forces-of-nature criterion to distinguish software patent applications from technical inventions. However, a few weeks ago it upheld one of Microsoft's FAT patents, as this slashdot article also mentions. As I explained on my blog, this could be but need not be a "FATal patent ruling" [blogspot.com]. The detailed decision must be analyzed once available in order to understand whether the ruling related to the question of patentable subject matter. It's possible that it was only about inventiveness/prior art, given that the relevant court is an appeals court to which typically only certain (but very rarely all) aspects of a case are referred. In that case, the appeals court would not have been allowed to comment on non-referred issues (no matter how striking those might have been). Patent attorneys in Europe often try not to raise the question of patentable subject matter in their appeals because they would bite the hand that feeds them if they achieved rulings restricting the scope of patentable subject matter. They generally prefer to make invalidation cases on such grounds as "not inventive [as compared to prior art]", "not new [due to prior art]", "not sufficiently disclosed".

Another example of software patents that are already (unfortunately) quite enforceable in Europe are multimedia codec patents, such as MP3 and MP4 patents. It's become an annual ritual at CeBIT that dozens of confiscations of "pirated product", of which MP3 players are probably the largest group, take place on the first day of the show. I mentioned this in a recent blog post on multimedia patents [blogspot.com].

On my FOSS Patents blog, I have published a report juxtaposing what the EU official said with the FFII's criticism [blogspot.com].

The FFII and the European Union are institutions I admire. You are very opinionated as an activist about patents but only strong political organisations like these may keep a patent office accountable. Patent reform is high on their agenda, blogger activism is not enough. We need to support them (donate to FFII [ffii.org]) , support their agenda in any possible way. Without the EU there would still be wars in Europe.

I don't get why MP3 patents are enforceable. If it was special hardware they are running on, I would understand it, but - for example -the Sandisk Sansa players, which were confiscated at Cebit some years ago and one of which I incidentally own, are generic hardware, simple MP3 decoding on the ARM CPUs of the player, no DSP or custom chip support. If that is enforceable, everything is. Or where is the difference to other software?

I don't get why MP3 patents are enforceable. If it was special hardware they are running on, I would understand it, but - for example -the Sandisk Sansa players, which were confiscated at Cebit some years ago and one of which I incidentally own, are generic hardware, simple MP3 decoding on the ARM CPUs of the player, no DSP or custom chip support. If that is enforceable, everything is. Or where is the difference to other software?

I have spent a fair amount of time in Brussels in recent years, starting with my campaign against software patents in Europe. While I understand what you mean to say with your criticism, I would disagree that the EU is inherently undemocratic, let alone antidemocratic.

The EU is a complex construct: it's neither a federation such as the United States or Germany nor an international organization such as the World Trade Organization. It's an in-between, it's a supranational alliance of countries, and that entails a setup in which the national governments of the EU Member States still wield a lot of power. Otherwise we would have (for better or worse, which is not the question) a system more similar to that of the United States, in which the sovereignty of each state is very limited compared to that of an EU Member State.

The original idea of a united Europe was a peace project. It was not about liberalizing markets, although even that is not necessarily against the interests of citizens. As someone who travels a lot in Europe, I can see some of the benefits that the EU has brought to citizens, such as the cap on mobile phone roaming charges that the EU imposed a few years ago.

The complexity of the EU's structures has the effect that only a limited number of people even understand how decisions are taken. There's probably just a minority of US citizens who know exactly all of the procedural possibilities concerning conciliation between the Senate and the House (such as the "deemed passed" principle that the Democrats were considering at some point to push the healthcare bill through), but at least people in the US will know their senators and probably also their congressmen (for their constituencies). Here in Europe, people generally don't know their MEPs (Members of the European Parliament). The media don't report because Brussels seems so remote, processes are complicated and time-consuming, and even when a legislative decision is taken, it usually takes time before it gets implemented by the Member States (enshrined in national laws) -- two years is the standard period that EU directives allow for that purpose. Most of the problems that people criticize when talking about the EU's "democratic deficit" could be solved by the Fourth Estate (the media), but there's a chicken-and-egg problem because citizens don't know about "Brussels" for lack of media coverage and the media don't report much for lack of interest by their audiences.

I also think one has to acknowledge in all fairness that the European Parliament's powers have been significantly enhanced by the Lisbon Treaty. I can understand if people say it was not enough, but there has certainly been progress, with now pretty much all decisions requiring the support of the Parliament (either through co-decision or assent procedures).

Florian, I do appreciate infinitely what you are doing. It's courageous and edicated folks like you who make the world a better place.

That said, I, as an European voted *for* the European Constitution (I'm Spanish). Having seen the farce which evolved in front of my eyes ("so we don't get a Constitution: we give ourselves the Lisbon treaty") I must say I regret having done so.

Those Eurocrats seem to want the legitimization without actually being bound by democracy. A Parliament which is elect4ed but has no

You can mod parent down to oblivion, even when everything in it is true, and while Mueller's campaigning has proved it right. For when you try to defeat a motion democratically in the EU, and succeed, they'll push it again and again; if after the 3rd or 4th time they haven't worn you down, they'll just invoke another method using the less democratic EU frameworks to enforce it.

While people continue to support pro-EU activists who are convinced that democratic grass roots lobbying works in the EU as it might work in a national democracy, they will contribute toward the problem of helping the EU Wizard of Oz distract citizens from how it really works. It's like watching people cheerlead de Icaza while he either very misguidedly or very dishonestly waves the MS flag.

Just to avoid any misunderstanding, I certainly didn't mod your comments down.

You said they'll push again and again if a proposal fails the first or second time, and that is certainly a trait of EU politics. The "Constitution" got replaced by a "Reform Treaty", and that one had to be voted on twice in Ireland (but the second vote was still democratic, people still had the chance to vote against and many actually did, but not enough to scupper the proposal). While EU officials continue to claim that there ar

The original idea of a united Europe was a peace project. It was not about liberalizing markets,

My history might be off but I understood it that even back from the steel and coal union it was to unite through trade. Basically you can't easily change human nature but if war would send both countries into economic ruin they'd rather solve it peacefully.

and even when a legislative decision is taken, it usually takes time before it gets implemented by the Member States (enshrined in national laws) -- two years is the standard period that EU directives allow for that purpose.

This is the biggest problem with the EU directives, they're not being passed directly into law. What practically happens is that all the criticism is shot down as FUD, that's not what the law will say. And when finally the national law comes and the law is exactly as terrible you get what I call democracy theater - like security theater. All the essential moments are already in the directive, you can only pick your degree and flavor of poison. Oh they may score some cheap political points, they can throw a few temper tantrums and run a round with the EU - but EU always wins and the directive is implemented anyway. That's what the media should report "Too late - directive passed". Then hopefully people would get a clue that it's the directives and the people that pass them that matter. But that'd give away the secret of how much EU decides and how little power the national parliaments have left.

My history might be off but I understood it that even back from the steel and coal union it was to unite through trade. Basically you can't easily change human nature but if war would send both countries into economic ruin they'd rather solve it peacefully

Your history isn't off but I can complement this:

Initially the key objective was indeed, in the wake of WW2, to prevent wars within Europe.

The idea of the founding fathers of the EU, such as Monnet and Schuman, was to start with economic integration a

No, the main goal have always been further integration and democracy within the Union, however, certain groups who often complain that the EU is undemocratic refuse to let it become more democratic, i.e. Eurosceptics such as the British Conservative party or the UKIP, because apparently a democratic Union would undermine national sovereignty.

certain groups who often complain that the EU is undemocratic refuse to let it become more democratic i.e. Eurosceptics such as the British Conservative party or the UKIP

That is bullshit. How they are stopping it from being democratic to begin with? Hell, look at ukip, the majority of the time they are standing their opposing any decisions that was made undemocratically and if they are unable to stop those decisions, how are they stop democracy from occurring?

Instead of pointing out the rhetoric they have been using in certain cases, you may want to address the issues that I pointed out initially. Explain why the UKIP, Conservatives and other "democrats" are constantly opposing granting more co-desicion rights to the ELECTED European parliament.

I am not going to watch all those videos now, since I am at work, but I may do that later tonight.

Explain why the UKIP, Conservatives and other "democrats" are constantly opposing granting more co-desicion rights to the ELECTED European parliament.

I can only think right now of how UKIP refuses to allow more control given to the European Union due to the fact there is promises that there will be democratic voting, but then the EU turns around and just makes the decisions regardless when people oppose the decisions.

If that isn't what you were referring to, could you provide links to the specific parliamen

Please tell me when this has happened, and I can reply. And no, Lisbon does not count since it was the Irish that changed their mind after amendments (as is usually the case in parliaments, a party may change its mind after some amendments). In the real world, no is not necessarily a no if there is a possibility for fixing the reason for the no, this is not undemocratic, unless you belong to the part that refuse to compromise in which case most likely anything that goes against your will is undemocratic.

You realize that “further integration” is the opposite of “democracy” because it is the removal of choices, do you?Logically it leads towards only one government, and you being unable to flee to anywhere else, if you happen to disagree.

But it’s all awwright, because it’s in the name of the oh-so-holy “democracy”, which, when you remove the pink glasses of delusion, is not any better than a communistic “transitional government” (those that somehow n

"You realize that “further integration” is the opposite of “democracy” because it is the removal of choices, do you?"

Umm... no, that does not compute. Further integration means more power to the EP, and less to the Council. Though, the Council certainly have been elected in some sense by being elected to government in the member-states, they are not really accountable to anyone as a body (you cannot fire the council since that would mean firing all state-governments). With democracy,

Further integration means more power to the EP, and less to the Council.

I have no idea what you thought we were talking about. But we were talking about further integration of states into one country.Which results in less governments to choose from. And that, like any monopoly, results in loss of freedom and more oppression by the monopoly.While your idea of “democracy” is, that people can choose their government.

Which in happy wonder dreamland of rainbow and love world would also be true for world governments. B

Nothing is of-course perfect, the best decisions are taken by the individual, but since that is not practically possible for everything (e.g. where should we build a school et.c.), a public is necessary.

Direct democracy in term only work for small groups, where travelling distance is not a problem, though I suppose that now, we could in principle distribute the groups over a larger through technology, the groups must still be small.

"You realize that “further integration” is the opposite of “democracy” because it is the removal of choices, do you?"

Democracy is about majority decisions, not about choices. But, if the plurality and diversity of your choices is something you are concerned about, would further integration not be the better thing here?

I mean, you get one more more choice of decision level: individual, family, community, municipality, province, state and union.

For those who are interested in what kinds of initiatives the EU is planning to take in connection with intellectual property rights beyond that new patent and patent court system, here's a summary of a speech [blogspot.com] by the Commission official driving the "patent reform" effort. Keywords: data retention, ACTA, Digital Agenda, aftermath of Microsoft case, Google Street View, open standards, open content, criminal prosecution of IPR infringers, trademarks, AdWords.

Or to put it politely;Originality is the art of concealing one's sources.

"The distinction between creation and discovery is not clear cut or rigorous.Nor is it clear why such a distinction, even if clear, is ethically relevant in defining property rights. No one creates matter; they just manipulate and grapple with it according to physical laws. In this sense, no one really creates anything. They merely re arrange matter into new arrangements and patterns. An engineer who invents a new mousetrap has rearranged existing parts to provide a function not previously performed. Others who learn of this new arrangement can now also make an improved mousetrap. Yet the mousetrap merely follows laws of nature. The inventor did not invent the matter out of which the mousetrap is made, nor the facts and laws exploited to make it work.Similarly, Einstein's "discovery" of the relation E=mc2, once known by others, allows them to manipulate matter in a more efficient way. Without Einstein's, or the inventor's, efforts, others would have been ignorant of certain causal laws, of ways matter can be manipulated and utilized. Both the inventor and the theoretical scientist engage in creative mental effort to produce useful, new ideas. Yet one is rewarded, and the other is not".(Kinsella, Stephan. "Against Intellectual Property").

"Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property".--Thomas Jefferson, to Isaac McPherson 13 Aug. 1813 Writings 13:333--35

I wish you idiots would stop trolling around that Jefferson quote. It is part of a long exchange of letters and deals with the argument of the patent as a natural right. Jefferson was not opposed to patents; he was instrumental in the creation of the Patent Office.

He was opposed to the argument, popular at the time, that there was a natural right to the fruits of intellectual labor. Jefferson writes in that same letter that real property is not a natural right, and thus what was called at the time indust

Jefferson had serious doubts about the Patent office, some of which are expressed in this part of the discourse. The entire exchange was somewhat long for a/. post.

He was opposed to the argument, popular at the time, that there was a natural right to the fruits of intellectual labor.Jefferson writes in that same letter that real property is not a natural right, and thus what was called at the time industrial property, was, like ALL property, a social construct.

And on this too i agree with Mr. Jefferson. Your point being?

Using the quote to say that patents and copyrights aren't property is no more accurate than saying that real estate isn't property.

Real estate isn't property per se. Stolen, squatted, ill-gained, abandoned etc. real estate would under circumstances not be seen as (your) property, even by law.

In nature, the only property that exists is that which you can physically defend from others who would want to obtain it. There is no form of property in civilized society that meets that criterion.

Au contraire, all forms of property in modern society meet that criterium. Property is defined by law, laws are defined by n

It might surprise you that sometimes the people most involved in any given sector are also those most critical of it.Sometimes these people even carry on with their job, aware of the faults, addressing these to the best of their ability, and still remain critical of the system.I am actually under the impression that all the so called "Founding fathers" possessed this trait in abundance."He was the director of the Patent Office and wrote the 1790 Act".He was also an actor, firefighter, architect, pig breeder

It might surprise you that sometimes the people most involved in any given sector are also those most critical of it.
Sometimes these people even carry on with their job, aware of the faults, addressing these to the best of their ability, and still remain critical of the system.
I am actually under the impression that all the so called "Founding fathers" possessed this trait in abundance.
"He was the director of the Patent Office and wrote the 1790 Act".
He was also an actor, firefighter, architect, pig breeder, calender maker, president, attorney, governor of Virginia, co-founder of the Democratic-Republican Party, author of the Declaration of Independence, founder of the University of Virginia, author of the Statute of Virginia for Religious Freedom and author of the Notes on the State of Virginia.
You think he didn't have any doubts about the system or indeed his own competence in any of those endeavors?
I think he embarked on them BECAUSE of his doubts.

Yes, but to say "he had serious doubts about the Patent office," is either woefully naive or intentionally misleading. He had no doubts about whether the patent system should exist.

Real estate is the fundamental form of property--indeed, it's called real property!

Au contraire, all forms of property in modern society meet that criterium. Property is defined by law, laws are defined by nation-states, and i think most nation-states can will try to physically defend themselves and their laws.

Well coming from the person who thinks real property isn't property per se, this is not an unsurprising statement, but it's still idiotic.

There is no form of property, in any modern society, contingent upon the owner's ability to fend off would-be takers with physical force. On the contrary, in most of the world, it is expressly illegal to use excessive force to defend mere possessions, on the theory that you can seek redres

Not all real estate is property (more specifically private property), even though the legal term is "real property. I just dislike absolutes. But i admire the twist.To state that it is fundamental is perhaps close to the truth. Was the concept of property evolved at all among hunter/gatherers?There were/are some interesting takes on property even among native americans and aboriginals.As for the state-monopoly on justice (and violence), that's just for the poor, the lawful and the powerless. Heavily armed (

And you would be wrong. There is literally no one alive who is capable of defending his possessions against the world without relying on the law.

With 100% efficiency? Certainly not. But the legal system is nowhere near that either. If you are saying that nobody could defend their possessions without a legal system, you've got to be kidding. The people protecting their property may not be inside the law, but we are assuming we aren't relying on the law.

Not many people are completely opposed to patents, but the patent system is broken and our viewpoints on patents are broken as well. The clause in the constitution that allows for copyright and patents to exist clearly defines the reason behind them as 'To promote the Progress of Science and useful Arts.' This makes it clear that patents in the US exist for the benefit of the public. not because inventors are inherently entitled to it, as calling them 'intellectual property' suggests. Patents act very di

The patent system is not broken. It is imperfect, as it will always be. There are real issues with the practical implementation, and plenty of improvements to be made, but most of the commonly-griped aspects exist by design or are human limitations.

It has numerous problems that make it habitually fail to perform it's intended purpose, which is to be a net benefit to the public. That's about the most clear way a system could be broken.

The term does not connote anything resembling an inherent entitlement. People are not inherently entitled to any property except that which already belongs to them. I'm not sure what the basis of this perceived "suggestion" is.

The general public is quite keen on strong legal protections of property. People feel much stronger about shoplifting than for example copyright infringement. By equating the two, you'll have an easier time convincing the public to support further enforcement of copyright and less support for the protections of fair

There is no serious contention that the patent system on the whole has not been wildly successful.

That is very difficult to prove either way. Also, I'm not talking about patents in the last 200 years, I'm talking about patents today. There are scholarly people that suggest that patents act as a x% tax outside of perhaps the pharmaceutical industry, let alone justifying the freedoms that the public sacrifices in order for patents to be enforced. However, what I am arguing for is not the need to abolish the patent system, but the needs to reform it, which I think most anyone can acknowledge.

I don't believe that is the case. I think if you conducted a poll, you'd find that most people care very little about either, as most people are not shopowners or copyright holders.

No, it's not. Anything that is patentable is also protectable by trade secret. Absent the patent system, companies would have to expend additional resources on keeping the inventions secret or litigating in private law, but they would have absolute and indefinite protection.

Accounting for patents within a company is difficult enough, let alone the total cost and benefits to society. Some patents could be trade secrets, but some couldn't.

How about the President of the United States, or other similar political positions? It certainly bestows certain exclusive rights for a limited time, as POTUS is the only person who can appoint federal judges. These rights are legal rights and they are as exclusive as they get. Some may argue that exclusive rights are what define property,

The real WTF is that we are voluntarily use that crappy file system.Come on. There are things like ZFS out there. Compared to those, FAT32 looks like putting a rusty old Russian pedal car next to a cybernetically enhanced supercar / interstellar space ship. ^^

You asked "How can it happen?" Here's why: the proposed United Patent Litigation System is based on a system of international treaties, and those would transcend the geographic boundaries of the EU.

Today that's already the case to some extent, with the European Patent Office not being an EU institution but an international organization in its own right, governed by the European Patent Convention (EPC). The EPC is a treaty that has more countries as parties to itself (the treaty) than the EU has Member State

Such a central patent court could also validate software patents via caselaw (as the German Supreme Court recently did with the Microsoft FAT patent).

No, no, it isn't a general validation of software patents. The German legal system follows Civil Law, not Common Law. That is, the results of previous court cases are not binding on later cases. A subsequent court is bound only to follow statutory law, and has no obligation to take into consideration previous case law. This is quite different to the Comm

The German legal system follows Civil Law, not Common Law. That is, the results of previous court cases are not binding on later cases. A subsequent court is bound only to follow statutory law, and has no obligation to take into consideration previous case law.

What you don't say here is that rulings by the court that ruled on the FAT patent (the Bundesgerichtshof, which is the highest German court in all matters of civil and criminal law, above which there's only a Federal Constitutional Court, which wouldn

I had said that only the Federal Constitutional Court is above the Bundesgerichtshof, the court that ruled on the FAT patent, but I also said that the Constitutional Court doesn't hear patent cases. I had a typo in my post ("heart" instead of "hear") but the message was clear.

Very theoretically, the Constitutional Court could look into patent law if someone's fundamental rights were violated by the law. With the question of whether or not software should be patented, that's extremely hard to imagine, which

Microsoft's FAT patent affects all citizens, even the consitutional court. Microsoft can threaten the court not store their judgements on hard disc because they own a patent, and if the Court countersues, refuse to license Microsoft Windows, IE, Office, Outlook to them. Then they have to learn the Linux command line interface Latex and store their documents on ReiserFS file servers.

As I see it, a "Leitsatz"-judgement indeed technically has to be followed by lower courts, but they still can actually rule to the contrary, opening up the way to higher instances until the issue reaches the BGH again. Certain judges on certain OLGs (state courts, roughly) seem to have it made a hobby ruling against the established guidelines from the BPatG (patent court) and sometimes BGH lately in patent matters. If you follow the guidelines issued by the BGH on software patents, their opinion seems to ch